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Q&A: Service on a Medical Review Panel

July 20, 2022

By Deborah Deo Gracias Trahan, Director of Legal, Schroeder & Trahan


Q&A: Service on a Medical Review Panel
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What is a Medical Review Panel (MRP)?
Most Louisiana healthcare providers elect to enroll in the Louisiana Patient's Compensation Fund (PCF). Hospitals, physicians, nurses of all levels, EMTs, physician assistants, and many other types of providers are eligible for participation in the Fund. Participation also entitles the healthcare provider to a cap on the quantum of damages that may be awarded at trial. Participation in the PCF deems the healthcare provider as "qualified." Before a Louisiana patient can file a medical malpractice lawsuit against a qualified healthcare provider, the patient must first submit a claim to the Louisiana Division of Administration, which forwards the claim to the PCF. The Medical Review Panel process (MRP) is a review of the claim by a panel of healthcare providers. The process is intended to reduce the number of medical malpractice lawsuits by allowing the patient to receive an early opinion about whether or not the healthcare provider met the standard of care. 

After the patient has paid the filing fee of $100 per healthcare provider named in the complaint, the MRP process commences. The patient/plaintiff is required in a letter to the PCF to include a description of the alleged malpractice and other information about the claim. The PCF then issues a letter to the defendant, advising the healthcare provider that the claim has been filed. This letter from the PCF is often the first notice of a malpractice claim. For that reason, it is very important that the letter be immediately forwarded to LAMMICO. LAMMICO will assign a claim representative and a defense attorney to work with the defendant healthcare provider until the claim is resolved. 

The healthcare provider’s attorney will respond to the letter by contacting the attorney for the patient to appoint an attorney chairperson that will manage the MRP process. The plaintiff will appoint one healthcare provider to the MRP. The defendant will then appoint a healthcare provider, which in the case of a physician defendant is generally a physician of the same specialty, familiar with the treatment at issue. A third panel member will be appointed by the first two appointees. 

In most cases, the parties will exchange questions, called “Interrogatories”, to obtain information and evaluate the claim. They will also obtain all the relevant medical records. The appointments, the initial exchange of answers and document exchange process may easily take over six months, often longer. The defendant healthcare provider’s attorney may ask a defendant to provide information about the medical care and reasoning for his or her decisions and diagnosis. A statement concerning the care, together with the medical records, will be the evidence that will be submitted to the three members of the MRP.

The attorney chair will coordinate finding a date on which all the panel members and both the representatives of the plaintiff and defendant can meet. The meetings may be conducted by phone. The defendant healthcare provider and the patient have a right to attend this meeting, but rarely do so. When the panel meets, the only evidence allowed is the medical record and other relevant written material. No testimony or other oral evidence is allowed. Only the panel members and the attorney chair may be present during deliberations. After deliberations and the opinion decision, in many cases, the parties may be allowed to ask limited questions about the basis for the opinion.

The only role of the MRP is to decide whether the defendant did, or did not meet the standard of care as charged in the complaint. On occasion, the panel will find that it did not have enough information to make the decision, or that the facts are not clear. The attorney chair will draft the opinion and the basis for the opinion, and send it to all parties and to the PCF. The majority of panel opinions are favorable to the defendant healthcare providers. The prevailing party pays the fees of the attorney chair and the $300 fee each member is paid to serve on the panel. The MRP process and the opinion are not public record. However, the opinion may be introduced as evidence at trial, and the panel members may be called as expert witnesses by either side, should the matter proceed to trial. 

The time period from receipt of the patient complaint to panel opinion is lengthy. It can easily take over two years. The patient cannot file a lawsuit in court until he or she receives the panel opinion. A lawsuit must be filed within 90 days plus anytime remaining in the prescriptive period. The patient may file a lawsuit even if the panel opinion was favorable to the healthcare provider. 

Why is it important for physicians to serve on a Panel?
Louisiana physicians are fortunate to have a confidential peer review process, but the system only works if good people are willing to serve. Much like jury service, serving on a Panel is an obligation. If you are appointed, absent a conflict of interest or affidavit of hardship, you are required to serve unless you have already served on four Panels in the preceding 12 months. However, physicians that are qualified should be eager to participate. It is an important process with significant implications for the defendant physician.  A favorable Panel Opinion often prevents a lawsuit. While the compensation is nominal, only $300, the time required is usually minimal, typically one meeting scheduled in the evening after Panelists have finished seeing patients. The Attorney Chairman will facilitate the process and will usually accommodate telephone participation if that is more convenient for the Panel members. Many physicians find the process enjoyable and educational. 

Should I serve on a Panel if I am not familiar with the procedure or treatment at issue?
Many specialties have become subspecialized, and occasionally members of a specialty do not possess the requisite knowledge necessary to evaluate the particular treatment at issue. A Medical Review Panelist must possess the knowledge necessary to evaluate the defendant’s care. A Panel should be composed of other members of the defendant’s “same class and specialty of practice,” familiar with the particular treatment at issue. Upon receipt of notification of your appointment, the Attorney Chairman should make you aware of the specific nature of the claim, usually by providing a copy of the complaint. Therefore, when you are appointed, you should immediately review the complaint, or ask the Chairman about the claim, to ensure you are a proper Panelist. In the event you are selected to serve for an issue you are not qualified to review, you should advise the Attorney Chairman and request to be excused from the Panel.

What if more than one specialty is involved in a claim?
A Medical Review Panel is composed of three Panelists, regardless of the number of defendants named. However, courts have found it is permissible for a Panelist to defer to a fellow Panel member for review of treatment within that Panelist’s field or specialty. Therefore, when there are two or three specialties, the care rendered by each defendant should be reviewed primarily by the member of his own specialty who is familiar with the applicable standard of care for the treatment at issue, and the other Panelists may join in the Opinion if the decision appears reasonable based upon their own training and experience. Therefore, if you are selected to serve on a Panel with multiple specialties involved, you should review the care within your own field and defer evaluation of other specialties to those physicians familiar with the standard of care.

What happens when more than three specialists are named as defendants?
A procedural challenge is presented when four or more specialists are named as defendants in a claim because the Medical Review Panel will be composed of only three of the defendants’ specialties. However, the Louisiana Medical Malpractice Act provides that a Panel may consult with additional medical experts to evaluate a claim. Therefore, if a Panel is not able to evaluate the care rendered by a defendant due to a lack of expertise, a physician with the requisite expertise and knowledge of the applicable standard of care may be consulted by the Panel so that the defendant's care may be properly evaluated by a physician familiar with the treatment at issue. If all parties consent, the Panel may be expanded to more than three physicians.

What if I am medically qualified but need more information to render an Opinion?
Evidence submitted to a Medical Review Panel may consist of medical charts, x-rays or other films, laboratory results, medical literature, depositions of the parties or other witnesses, written answers to questions or “interrogatories” exchanged by the parties, and affidavits or reports of medical experts. Panelists are entitled to request or procure additional information beyond what is submitted by the claimant and defendant-physician. The Louisiana Medical Malpractice Act expressly provides that Panelists have the “right and duty” to procure all information necessary to render an Opinion. To facilitate obtaining necessary information, the Panel is authorized to request the issuance of subpoenas for testimony or records which the Panelists feel would be beneficial in their evaluation of the claim. Thus, if upon initial review of the evidence submitted, or even after a period of deliberation, the Panel needs additional information before an Opinion can be rendered, the Attorney Chairman should be advised, and the meeting adjourned until the information is obtained.

If the Panel needs guidance on a legal, rather than a medical question, the Attorney Chairman should be consulted by the Panelists to provide proper instruction. The Attorney Chairman of the Panel has the statutory duty of advising the Panel relative to any legal question involved in the proceeding. The Attorney Chairman should not be involved in the medical aspects of the claim, except to ensure the Panelists have all the medical records or other information necessary to evaluate the treatment at issue.

What if the information needed is the subject of debate between the claimant and defendant physician?
If information needed to render an Opinion is a “material” fact which is disputed by the parties, then the Louisiana Medical Malpractice Act provides that the Panel should render an Opinion that “there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court.” However, not all disputed facts are “material,” and often facts which are indisputable may be contested. Therefore, if a fact is disputed but has no bearing on the determination to be made by the Panel, and thus it is immaterial, an Opinion should be rendered as to whether or not the defendant-physician met the standard of care.

Should I render an Opinion regarding treatment by an unnamed physician or a portion of the defendant’s treatment that is not included in the complaint?
There is no legal duty to go beyond the allegations of the complaint. The Louisiana Medical Malpractice Act specifically provides that a complaint must contain the names of all defendants, the dates of the alleged malpractice, a description of the alleged malpractice as to each named defendant, and a description of the alleged injuries. Therefore, treatment that is not specifically raised by the claimant is not before the Panel for review and should not be included in the Opinion. If an amended complaint is filed to add allegations, the defendant physician will submit evidence to the Panel to address the additional allegations, which can then be included in the Opinion.

Does the Panel’s Opinion have to be unanimous? What if I disagree with the findings of another Panelist?
While many Attorney Chairmen will encourage a consensus finding, there is no requirement that the Opinion be unanimous. Any member of the Panel may render a dissenting Opinion, or where indicated, each Panelist may render a unique, individual Opinion. Therefore, if you are familiar with the care at issue, you should render an Opinion consistent with your own findings even if your impression is challenged by another Panelist, as you should not allow yourself to be intimidated or oppressed by an outspoken or harassing Panelist or Chairman.
 


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